And during the first virtual Easter week in living memory…
L&RUK and Coronavirus – COVID-19
To puzzled subscribers who received notification of the new post Coronavirus – COVID-19, we should explain that this week we decided to join the “big boys'” websites and put “coronavirus” up front on our home page. However, just like pinning a Tweet, it is first necessary to publish the post before identifying it as a “sticky” featured post.
While Coronavirus – COVID-19 falls outside the normal scope of L&RUK, in view of its widespread impact in this area it has been the subject of a number of posts. Links to these and other related information are available on the page Coronavirus updates – index, which is frequently updated with the latest information.
Coronavirus-COVID 19: legislation and guidance
The Explanatory Notes to the Coronavirus Act 2020 are now online. Legislation relating to coronavirus is available at http://www.legislation.gov.uk/coronavirus. This includes the three principal relevant primary legislative instruments and links to secondary legislation and legislation originating in the EU containing “coronavirus” in the title. There are links to pages listing the legislation that has been changed by this primary and secondary coronavirus-related legislation. Additionally, this web page also provides links to the guidance on coronavirus in England, Wales, Scotland and Northern Ireland.
On Thursday, the Westminster Parliament’s Joint Committee on Human Rights published the Chari’s Briefing Paper on the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 in advance of their review by the Health Secretary by 16 April. The briefing observes that the Regulations “impose the most wide-ranging restrictions on individual liberties, affecting the greatest number of people, since the Defence Regulations made during the Second World War”. Further,
“Despite their extent, the Regulations have not been subject to any Parliamentary scrutiny because they were promulgated by the Secretary of State for Health under emergency powers. Unsurprisingly, this has resulted in a number of potentially important human rights issues arising…”
Also on Thursday, the Foreign Secretary announced that the UK lockdown was to continue for at least a further three weeks. At the daily press conference, he set out criteria for the exit from lockdown – including a “sustained and consistent fall in deaths” and confidence that the NHS could cope with a second peak. It would be several weeks at least before the first was achieved. As to the second, there was strong evidence to suggest that “we are probably there”.
The National Police Chiefs’ Council and the College of Policing issued new guidance on What constitutes a reasonable excuse to leave the place where you live: a welcome common-sense clarification, albeit three weeks after SI 2020/350 came into force, which should not have been necessary. (And they can’t spell “practising”.) Underpinning this guidance is advice from the Crown Prosecution Service whose web page includes all of its coronavirus-related updates.
More generally, the European Commission for Democracy Through Law (less formally known as the Venice Commission) has published a Compilation of Venice Commission Opinions and Reports on States of Emergency. The compilation consists of extracts taken from reports/studies adopted by the Commission on emergency powers and states of emergency and of country-specific opinions on relevant constitutional provisions and/or (draft) emergency laws.
Cremations and funerals
On 17 April, the Local Government Minister Simon Clarke wrote to all councils in England “to ensure that family members can attend the funerals of their loved ones and that the wishes of the deceased are respected during this pandemic”. In Scotland, the interim Chief Medical Office, Dr Gregor Smith has said there was anecdotal evidence some people were delaying funerals in anticipation of the restrictions being lifted. However, this could put a strain on mortuary services.
The Minister’s letter notes that many councils have already introduced innovative approaches to support the wishes of the bereaved and create the closest experience to a normal cremation or burial as possible whilst keeping crematoria staff and those attending funerals of loved ones safe. It asks all local authorities to work with faith groups and funeral directors to develop safe, sensitive and innovative ways for funerals to take place. It also indicates that the Government has published new guidance for councils which outlines contingency measures as set out in Schedule 28 to the Coronavirus Act. This new guidance is reviewed in our post Coronavirus Act 2020 – Statutory guidance for local authorities.
As we noted in Cremation under coronavirus restrictions, these powers allow councils to issue directions, if required, on whether to bury or cremate someone, to direct crematoria to operate longer hours, and to direct funeral directors to have shorter services; they will only be triggered in exceptional circumstances if there is a public health risk. The letter also stressed that the Government has worked closely with faith groups to ensure that religious requirements and wishes are considered when making funeral arrangements, including the need for burial or cremation.
Marriage in decline?
The BBC reported that there was a total of 235,910 opposite-sex marriages were registered in England and Wales in 2017- a decrease of 2.8 per cent compared with 2016. According to the latest figures from the Office for National Statistics, the number of opposite-sex marriages has fallen by 45 per cent since 1972. Overall, there were 242,842 marriages during 2017 – 2.8 per cent fewer than in 2016 – and only 22 per cent were religious ceremonies. The average age at which opposite-sex couples were married was 38 for men and 35 for women.
Also in 2017, there were 6,932 marriages of same-sex couples of which 56 per cent were between female couples and 44 per cent between males. A further 1,072 couples converted their existing civil partnerships into marriage.
And in Northern Ireland…
On Wednesday, the Northern Ireland Court of Appeal handed down judgment in Re X  NICA 21, in which the appellant sought a declaration that the non-recognition in Northern Ireland of his same-sex marriage registered in England was incompatible with his and his husband’s Convention rights. In practice, however, the original petition for judicial review has been overtaken by the Marriage (Same-sex Couples) and the Civil Partnership (Opposite-sex Couples) Regulations 2019. We hope to post a note on the judgment early in the week.
The Jewish Chronicle
We reported last week that the Jewish Chronicle and Jewish News were threatened with closure. On 14 April, however, the JC reported that a solution may have been found:
“We are pleased to inform you that the Kessler Foundation, owner of the Jewish Chronicle, has today submitted an offer to the proposed liquidators of both the Jewish Chronicle and the Jewish News for the assets of both titles. We are hopeful that the Kessler Foundation will be successful in its bid which will see the Jewish community served by a single merged newspaper which will benefit from all the existing protections which guard its independence.”
The current Editor of the JC, Stephen Pollard, has resigned and is supporting a rival bid:
— Stephen Pollard (@stephenpollard) April 17, 2020
Reuters reports that three more rounds of talks between the UK and EU negotiators have been scheduled, to take place by videoconference. Both sides say that they remain committed to reviewing progress in June. Each round will last a week and will start on 20 April, 11 May, and 1 June. A statement by both the UK and EU said of the discussions:
“The two sides took stock of the technical work that has taken place since the first negotiating round on the basis of the legal texts exchanged by both sides. While this work has been useful to identify all major areas of divergence and convergence, the two sides agreed on the need to organise further negotiating rounds in order to make real, tangible progress in the negotiations by June.”
In February, the UK Government said that if it had not achieved the “broad outline” of a deal by then, it would consider abandoning the talks and preparing for a WTO Brexit in 2021 at the end of the transition. In spite of media comment to the contrary, it appears that that is still the Government’s position; the statement does not refer to the possibility of the transition period being extended.
- Crown Prosecution Service: Coronavirus-related updates.
- Diocese of Oxford: Parish HR – The Coronavirus Job Retention Scheme: Furloughing employees during the Coronavirus months, (v1 27th March 2020).
- Kanstantsin Dzehtsiarou, Strasbourg Observers: COVID-19 and the European Convention on Human Rights: on Article 15 ECHR, which allows the Contracting Parties to derogate in case of emergency.
- Kanstantsin Dzehtsiarou, Strasbourg Observers: What Can the European Court of Human Rights Do in the Time of Crisis?: “Unfortunately, my preliminary answer is not that much.”
- Georgiana Epure, Strasbourg Observers: Strengthening the supervision of ECHR derogation regimes. A non-judicial avenue.
- Neil Foster, Law and Religion Australia: Church meetings and COVID-19 in Australia.
- Dominic Ruck Keene, UK Human Rights Blog: Leviathan unshackled?: on possible tensions between the response to the COVID-19 pandemic and the rule of law.
- Megan Manson, National Secular Society Opinion: Charity and homophobia shouldn’t mix: “Many secularists who are appalled by homophobia would nevertheless argue that a religious organisation should be allowed to express homophobic views because freedom of expression must apply to all. But the issue here is that these are charities, which are supposed to exist to benefit individuals and societies.“
- Stevie Martin, EJIL: Talk!: A Domestic Court’s Attempt to Derogate from the ECHR on behalf of the United Kingdom: the implications of COVID-19 on judicial decision-making in the United Kingdom: on BP v Surrey County Council & Anor  EWCOP 17 and a judicial attempt to derogate from Article 5.
- Bob Morris and Robert Hazell, UCL Constitution Unit: Coronavirus: how Europe’s monarchs stepped up as their nations faced the crisis: in which they argue that HM’s intervention “demonstrates the value of an apolitical head of state that remains compatible with modern democracy”.
“The C of E is full of groups with narrow views and broad views. That’s why it’s polity has to be spacious, pragmatic, orthodox, reasoned and traditional. We can’t just make it all up because we feel personally moved to do something different in a crisis”,
… thereby providing an additional explanation for not posting on the complexities of the ecclesiastical law concerned.
The Independent reports an unexpected consequence of COVID-19; in the US, Georgia has suspended an anti-mask Ku Klux Klan law so that residents can wear face coverings during the coronavirus pandemic. The 1951 law stated it was a misdemeanour to wear “a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.”
Or as Tom Lehrer famously sang: I wanna talk with Southern gentlemen / And put my white sheet on again.